Trust for management of assets

BethMimi

Good grief, this is my third post in the last three days. I am very needy lately with a thousand things to think about. 

When Mom's house is sold the proceeds are supposed to go towards paying for her care.  And only her care.  I'm in the process of getting her admitted to a facility. The problem is that my brother has POA and I don't trust him to manage this.  His managing her affairs up until now has been very sketchy and closely guarded.  I'm not allowed to question. He has been living there free as a bird, driving her car without paying for anything. Nada. Just bought a brand spanking new expensive car for himself because used is not good enough.  It just about blew his whole savings.  Now that he is worried about where he will live and how he will support himself when the house is no longer there for him to mooch off of.  He is not on the title and I have medical POA. So you can understand my concern. 

I don't know what this is called.  Is it called a trust?  What kind of attorney might I consult with?  I could use just some starting point advice to help me in the right direction.  

The good thing in all this is that I can afford an attorney, he can't.

Thank you to everyone and please take good care of yourselves.    

loveskitties

I think you really need an elder care attorney to help you thru this.  Your medical POA will not work for finances nor will it remain active when she is not competent...for that you need a Durable POA.

Hope you can get this all sorted out for your mother's care.

towhee

I think what you are asking is if the proceeds from the sale of the house can be put in a trust with your mother as beneficiary. If your mother were competent to sign legal documents this could absolutely be done. Could a DPOA create a trust? I have absolutely no idea. 

You need a CELA, a certified elder law attorney. Go to nelf.org. Be aware that some CELAs really only do medicaid planning, you need one who can help you pull together all the different parts here, and help you plan for your mothers care long term. The lawyer needs to talk to both you and your brother, needs to see the DPOA, have a general idea of your mothers assets and debts, some idea of your mothers stage and physical condition and give you information on medicaid if it is a possibility that you will need that. When one sibling is DPOA for finance and the other is POA for healthcare you have to work together or your mothers care will suffer. In a case like this the CELA is not your lawyer, the CELA is not your brothers lawyer, they are your mothers' lawyer, whether or not they ever lay eyes on your mother. It is possible that the lawyer may be able to get your brother to be more transparent going forward. If you start a fight with your brother it might end up in guardianship proceedings with someone totally outside the family assigned financial control. You do not want to do that unless there is no other option.

Regarding the aid and attendance in your other post-I know they have asset limits now. It is possible that while a home might be exempt from these limits, cash from selling a home might not. I have also seen where a couple of times the income from aid and attendance has disqualified a person from medicaid. I would look into the site another poster gave you before spending 1500 dollars. Anytime someone says they can help me "avoid provisions" I head in another direction.

Regarding your brothers freeloading. Your brother has been living with your mom. I want your to objectively ask yourself how long it has been since your mother could live alone, even if the person with her was just there to call an ambulance if necessary. Put that time into hours, and then multiply by at least 20. That is the amount of dollars your mother would have spent on private care if he had not been there. Just something to consider.

DrinaJGB

If he is trustee of your mother's trust for her care and health maintenance and support--he is possibly committing fiduciary breach, fraud, self-dealing, to name just a few.

  This is what you need to know. A fiduciary is held in a higher position of trust of another person's assets than a normal citizen. If he is indeed the trustee he can be in a lot of trouble for certain actions.

 That being said--you will have a hard decision to make if you chose to go after him. It will not only cost you a boatload of money to fight, but if he is indeed acting trustee his attorney fees can be taken from the trust. That is unless he is removed as trustee for fiduciary breaches.That is a whole other can of worms.

  Either way--you have to weigh what going after him may mean to your well-being, peace of mind, and bank account.

This is what I have learned from filing against a trustee---it is the longest, most painful and soul wrenching experience anyone can endure

  My DH's sisters forced me to hire an attorney for these same reasons while he was fighting for his life from a lethal brain virus. SO that left me with 2 long and expensive and confusing roads to hoe.

  The legal system--at least regarding  trust litigation issues--is fractured and will drain everyone involved of their own assets. There is a game of delay, delay, delay---cost, cost, cost cost, wait, wait, and wait some more.....

We have just passed year #10. Nobody wins except the attorneys.

jfkoc

You need to read a copy of the POA document. Is it durable? If not it will only be in effect while she is competent.